Bombay High Court
Shailesh Chandrashekhar Verma vs State Of Maharashtra, Through ... on 29 March, 2023
Bench: Amit Borkar
2023:BHC-AS:9748
55-wp629-2023-F.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.629 OF 2023
WITH
INTERIM APPLICATION NO.690 OF 2023
Shailesh Chandrashekhar Verma ... Petitioner
V/s.
The State of Maharashtra, through
Special Executive Magistrate - ACP. ... Respondent
Mr. K.H. Giri with Ms. Dhinika Jain and Mr. Pratik
Yadav for the petitioner.
Mr. M.G. Patil, APP for the respondent/State/
CORAM : AMIT BORKAR, J.
DATED : MARCH 29, 2023
P.C.:
1. The challenge in this petition under Article 227 of the
Constitution of India read with section 482 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as "the said Code") is to
the show cause notice dated 17th December 2022 issued by the
Special Executive Magistrate, under section 111 of the Code of
criminal procedure 1973.
2. In my opinion case of the petitioner is covered by the
judgment of this Court in Christalin Costa (Smt.) & Ors. v.
State of Goa & Ors. reported in 1993 Mh.L.J. 1409, in
paragraph 7 this Court observed thus:
"7. In my view all these submissions of Shri Nadkarni seems
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to be sound and deserve acceptance. As far as the last
grievance is concerned a bare perusal of section 107 of
Criminal Procedure Code read with section 111 shows that
such proceedings are to be instituted only in respect of
information received by the Magistrate if he is satisfied that
there is any danger or likelihood of somebody committing
breach of the peace and disturbing public tranquillity.
Obviously when there are quarrels between two private
individuals it appears that this situation is not contemplated
by these legal provisions. Quarrels between individuals are
not normally creating any problem of public order and at the
most it may lead to a problem of law and order to be dealt
with by the appropriate penal law. Proceedings under section
107 are always dealing with preventive measures to be taken
by the Magistrates in order to pre-empt any possibility of
breach of peace and disturbance of public tranquillity.
....................."
(Emphasis supplied).
3. In paragraph 8 the learned Single Judge after considering
the provisions of sections 107 and 111 of the Code proceeded to
hold thus:
"8. ............................The execution of the bond appears
therefore to be an independent facet of the inquiry which the
Magistrate is entitled to hold on the basis of the report
forwarded to him by the police. Such inquiry as to the truth
of the information forwarded to him in the report by the
police is contemplated in section 116 of Criminal Procedure
Code. It is true that its sub-section (3) provides that the
Magistrate, if he considers that immediate measures are
necessary for the prevention of a breach of the peace or
disturbance of the public tranquillity or the commission of
any offence or for the public safety, may direct the person
against whom proceedings have been instituted under
section 107 and an order under section 111 has been made
to execute a bond. But this power of the Magistrate can be
exercised by him only after the commencement and before
the completion of the inquiry."
(Emphasis supplied).
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4. Considering the show-cause notice dated 17 th December
2022 and reply filed by the Assistant Commissioner of Police, I am
satisfied that there is no material to show that the peace and
tranquility as contemplated under section 111 or commission of
offence for public safety was on the record. Though it is stated that
the petitioner has executed interim bond as per section 116(3), no
such order directing the petitioner to execute such bond in exercise
of such power has been produced on record.
5. The writ petition is, therefore, allowed in terms of prayer
clause (a). No costs.
6. In view of disposal of the writ petition, the interim
application does not survive and stands disposed of accordingly.
(AMIT BORKAR, J.)
